A timely reminder for clients not to “self-select” disclosable documents
This time of enforced home working presents various difficulties to those working on contentious matters. How do you conduct remote hearings effectively? How do you interview witnesses effectively?
But a timely case reminds all litigation practitioners to take control of the disclosure process and, in particular, not to allow their clients to select the documents to be disclosed.
Square Global
In the case of Square Global Ltd v Leonard, an employment dispute, Square Global complained that Mr Leonard had been “remiss” in his disclosure duties. In particular, it argued that he only disclosed three cover emails between him and a rival firm, Market Securities, while failing to disclose “important attachments”. Mr Leonard’s correspondence with Market Securities was at the heart of Square Global’s claims against him. In his witness statement for the trial, one of the founders of Square alleged that (in the judge’s words):
“… it had been established in the inter-solicitor correspondence that Mr Leonard himself conducted a review of his documents (rather than the solicitors), and – importantly – he had also selected which documents he considered relevant”.
Counsel for Square Global said that they were not suggesting any breach of professional obligations by Mr Leonard’s solicitors, stating that solicitors were “under an obligation only to advise their clients properly on their disclosure obligations”. They referred to PD 31A, which emphasises the need for solicitors to make sure that the clients understand the duty of disclosure.
Mr Leonard, for his part, said that there was “nothing untoward” in him searching for relevant documents when he was an individual with limited documents, well aware of where they were located.
The court’s ruling
The judge was not prepared to find any breach of professional duty on the part of the solicitors, noting “the immense strains placed on both advisers and litigants by expedited proceedings of this nature”, and he recorded that he had been “highly impressed with the skill, efficiency and industry of all the legal advisers in this case”.
However, the judge stressed that PD 31A does not set out the extent of a solicitor’s relevant disclosure duties, and that it is “fundamental” that the client must not select the relevant documents.
The judge said that the position was well summarised in Matthews and Malek on Disclosure (5th edition, 2017), quoting the following:
“The best way for the solicitor to fulfil his own duty and to ensure that his client’s duty is fulfilled too is to take possession of all the original documents as early as possible. The client should not be allowed to decide relevance – or even potential relevance – for himself, so either the client must send all the files to the solicitor, or the solicitor must visit the client to review the files and take the relevant documents into his possession. It is then for the solicitor to decide which documents are relevant and disclosable.”
Lessons to be learned
Although the judge in this case did not cast aspersions on the professionalism of the solicitors for Mr Leonard, it is clear that parties can expect very limited tolerance from the court of anything like what happened in this case. It should also be borne in mind that the Disclosure Pilot Scheme will apply to many significant cases now. The pilot includes more prescriptive detail regarding disclosure duties (of both parties and their legal advisers), expressly recording legal representatives’ duties including that they must take “reasonable steps to advise and assist the party to comply with its Disclosure Duties” (PD 51U.3.2(2)).
While it seems obvious that a client should not self-select documents for disclosure (given the temptation of some clients perhaps (even subliminally) not to flag as relevant documents harmful to their case and, particularly in complex cases, concerns surrounding the ability of clients to digest all the nuances of relevance), this case serves as a welcome and timely reminder of the duties on solicitors to do all they can to conduct the review themselves.
The judgment is particularly timely in the current circumstances of the COVID-19 pandemic. It might be seen as difficult for some clients, in particular those individuals who are self-isolating, to provide all document sources that may contain relevant documents, to their solicitors. The age of hand delivering hard copy files or even USB sticks with downloaded data is not yet back upon us. However, the world has not completely stood still and although personal travel for these purposes is no doubt potentially difficult (and many people would balk at it), no such difficulties present themselves to obtaining digital data held in a way which is recoverable remotely. Electronic disclosure providers and forensic IT professionals are well-versed in “imaging” electronic devices and email accounts “down the pipes” through internet connections.
If, however, there are specific difficulties faced by a party in ensuring the timely delivery of documents (whether physical or electronic) to their lawyers, and if those difficulties present the need for an extension of time to meet a deadline, then an early approach to the opponents and, possibly, the court is surely the prudent course.
This piece first appeared on the Practical Law Dispute Resolution Blog on 15 June 2020.
Our thinking
David Carver
Guidance where Domestic Abuse alleged
Rhys Novak
Rhys Novak quoted by Citywealth on the ways companies can combat potential issues of fraud
Is fraud on the rise and should investors be wary?
Rhys Novak
Bribery & Corruption team successfully act in Italian bribery prosecution
Bruno Ledrappier
Mind the gap? Enforcing transition-period UK judgments in Switzerland revisited
A decision on an application to apply the Lugano Convention after the end of the UK’s transition period.
Matt Foster
The rise of cost sanctions in family law proceedings (even against successful parties!)
Mark Bailey
CIS General Insurance Limited v IBM United Kingdom Limited - An analysis
Slow and chaotic – lessons from a digital transformation disaster in CIS General Insurance Limited v IBM United Kingdom Limited.
Stewart Hey
Stewart Hey featured in The Lawyer's reporting on the post-Brexit disputes landscape in the UK
Post-Brexit, the importance of making sure contracts have certainty with regards to jurisdiction and enforcement has never been greater.
Ghassan El Daye
Ghassan El Daye quoted by The National on the Dubai courts rejection of Dh1.3m rent refund claim
A convenience shop in Dubai lost its claim to a rent refund of Dh1.3 million from its landlord on grounds of lost revenue during lockdown.
John Sykes
Warranties on an indemnity basis: a question of damages
John and Simon take an in-depth look at warranties on an indemnity basis
Sonia Ghai
Sonia Ghai writes for the Practical Law Dispute Resolution Blog on disclosure and documents referenced in expert reports
It is well-established that parties have the ability to seek specific disclosure of documents not already provided by way of disclosure.
Ghassan El Daye
Ghassan El Daye quoted by The National on legal reform in the United Arab Emirates
Once a law change has been made and is effective, a court of law is obliged to follow the new rule and issue its verdicts based in it.
Emma Humphreys
Property Patter: The trendy option – FAQs on tenant CVAs
Listen in for the answers to FAQs on tenant Company Voluntary Arrangements
Sonia Ghai
Disclosure and documents referenced in expert reports: a level playing field?
Sonia looks at the impact of the recent High Court decision in Zverev v Ace Group International Ltd
Simon Heatley
John Sykes and Simon Heatley write for Practical Law on warranties on an indemnity basis
When negotiating the terms of an agreement, an issue that often arises is whether warranties ought to be backed by an indemnity.
Duncan Lamont
The latest phone hacking settlement achieved on behalf of six celebrity clients from Mirror Group Newspapers reported in the press
The news of the latest phone hacking settlements from MGN reported by The Telegraph, Sky News, Yahoo and New Law Journal
Duncan Lamont
Phone hacking: Charles Russell Speechlys achieves settlement for celebrity clients from Mirror Group Newspapers
Charles Russell Speechlys can today confirm the settlement of privacy claims for unlawful voicemail interception on behalf of six clients.
Ghassan El Daye
Ghassan El Daye quoted by The National on the Federal National Council's proposals to unify legal fees
The Federal National Council is calling for legal fees to be unified.
Max Davis
If you have nothing to hide you have nothing to fear: Why the Government is afraid of Judicial Review
Simon Heatley
Damages-based agreements: A positive step by the Court of Appeal
Noel Wardle
Noel Wardle quoted by Chemist and Druggist on the issues that need to be considered before pharmacies adopt a hub-and-spoke dispensing model
Under current legislation, the hub-and-spoke model can be carried out by pharmacies owned by the same legal entity.